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Indigenous treaties in Canada are constitutionally recognized agreements between the Crown and Indigenous peoples. Most of these agreements describe exchanges where Indigenous nations agree to share some of their interests in their ancestral lands in return for various payments and promises. On a deeper level, treaties are sometimes understood, particularly by Indigenous people, as sacred covenants between nations that establish a relationship between those for whom Canada is an ancient homeland and those whose family roots lie in other countries. Treaties therefore form the constitutional and moral basis of alliance between Indigenous peoples and Canada.

Introduction: Treaties Have Different Meanings for Different People

For Indigenous peoples, the sacred and binding character of treaties is not found primarily in the documents’ legalistic language. Instead, the true force of treaties is rooted in what was actually said, often in Indigenous languages, at the time of the negotiations. In addition, treaty deliberations were frequently accompanied by ceremonial conventions such as the smoking of sacred pipes (calumet) or an exchange of symbolically significant presents (e.g., wampum belts.) Accordingly, many Indigenous peoples look to their elders who are schooled in oral histories as the highest authorities on the spirit and intent of the treaties.

For the Crown, the principles for treaty making with Indigenous peoples were articulated by King George III in the Royal Proclamation of 1763, which established the constitutional foundations of Canada after the government of France withdrew its claims to North America. The constitutional character of treaties between Indigenous peoples and the Crown was renewed in the Constitution Act, 1982, which describes itself as “the supreme law of Canada.” Section 35 of that document both recognizes and affirms “existing Indigenous and treaty rights” (seeRights of Indigenous Peoples.)

Court rulings since then have continued to shape treaty relations between the federal government and Indigenous peoples. For example, in the Sioui case (1990), the Supreme Court of Canada determined that “treaties and statutes relating to Indians should be liberally construed and uncertainties resolved in favour of the Indians.” In that case, the court introduced a principle adopted from a ruling in the United States in 1899 that treaties “must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.”

In spite of the constitutional character of treaties, the non-Indigenous peoples who made and implemented them tended to see them as self-serving deals rather than sacred pacts between independent nations. Historically, non-Indigenous treaty negotiators believed treaties were inexpensive and convenient ways to strip Aboriginal title (i.e., ownership) from most of the lands in Canada so that resources could be used by settlers (seeIndigenous Territory.) Even in modern times, the federal and provincial governments tend to interpret treaties in legalistic terms, contending that Indigenous peoples “ceded, surrendered, and yielded” their ancestral rights and titles through treaties. In other words, treaties can be seen as real estate deals by which the Crown purchased Indigenous lands and provided them with reserves and one-time or continual payments in return (seeTreaty Day.)

This narrow view of treaties has produced a huge divide between the Canadian government’s perspective and that of Indigenous peoples. On the one hand is the government’s view of treaties as legal instruments that surrendered Indigenous rights. On the other is the Indigenous view of treaties as instruments of relationships between autonomous peoples who agree to share the lands and resources of Canada. Seen from the Indigenous perspective, treaties do not surrender rights; rather, they confirm Indigenous rights. Treaties recognize that Indigenous peoples have the capacity to self-govern. Bridging the gap between these two views of treaties poses a huge challenge to people and lawmakers in Canada.

The complex history of treaty making in Canada can be explored by examining four significant eras: early treaties made before the Conquest, those signed between 1763 and Confederation, treaties made between 1867 and the first modern treaty in 1975, and those negotiated from 1975 to the present. A close look at treaties in the context of constitutional and international law also reveals much about the place of treaties in Canada’s domestic and international affairs.

Treaties with the French and British, 1676 to 1763

Treaties in Canada date back to the time when Europeans first arrived to North America. Europeans sought to make alliances with Indigenous peoples as a way of maintaining the peace, providing access to natural resources and gaining alliances in trade and colonial wars. This first era of treaty making starts roughly from the time of the Covenant Chain in the 16th century and extends until the Royal Proclamation in 1763.

The Covenant Chain

The conventions and protocols of treaty making in Canada can be traced to their origins in the Covenant Chain. This refers to an elaborate diplomatic relationship started between the Dutch and Indigenous peoples in the earlier part of the 17th century. Known later as the “Covenant Chain” by the English, several Anglo-American colonies and various Indigenous nations in northeastern North America engaged in this partnership after 1676. At the council grounds near Albany, officials from the colony of New York regularly negotiated with representatives of the Haudenosaunee (Iroquois), otherwise known as the Longhouse League or the Five Nations, and later, Six Nations Confederacy. By developing treaty relationships to maintain peace and for mutual economic and defence benefits, Crown officials set their eyes on more and more Indigenous land.

Treaties and Wampum

Crown officials and their Indigenous allies spoke of renewing their relationships as “polishing the links of the Covenant Chain.” It would be almost unthinkable for those Indigenous and non-Indigenous diplomats schooled in the Covenant Chain tradition to make treaties without signifying their major features on wampum belts composed of shell beads woven into appropriate symbolic representations. To accept a wampum belt in formal council was to agree to adhere to the principles embodied in its woven design. The wampum thereafter served to help perpetuate the memory of the treaty. The use of wampum as an instrument of treaty relationships spread widely throughout eastern North America in the 17th, 18th and early 19th centuries.

Peace and Friendship Treaties, 1725 to 1752

There is another tradition of treaty relations which has also been described as the Covenant Chain. This tradition links the British Crown to Mi’kmaq, Passamaquoddy and ​Wolastoqiyik​ (Maliseet) peoples, whose ancestral lands cover most of the Maritimes, as well as parts of the Gaspé Peninsula. Unlike treaties made after the Royal Proclamation, the Maritime treaties do not focus on the question of land ownership. Instead, these agreements, whose keystones include the Boston Treaty of 1725–26 and the Halifax Treaty of 1752, were primarily mutual promises of peace and friendship. The agreements also guarantee the Indigenous right to trade without hindrance and the right to fish and hunt in their customary manner. They also pledge regular supplies of food, provisions and ammunition from the Crown.

In this era, the Mi’kmaq and Wolastoqiyik were overwhelmingly Roman Catholic. They commonly had very close relationships to their priests, as well as to their French-speaking Acadian neighbours, with whom they intermarried (seeAcadia.) As a result, often they opposed the British, but this stance was modified somewhat through the treaty-making process.

In 1985, the Supreme Court of Canada affirmed the continuing force of the Halifax Treaty of 1752 by reversing a conviction for hunting out of season against James Simon of the Shubenacadie reserve. In spite of the Simon case, provincial governments in the Maritimes, like elsewhere in Canada, have had difficulty accepting that treaties between the Crown and Indigenous peoples limit provincial jurisdiction in Crown lands.

Today, Treaty Day in Nova Scotia commemorates the special relationship between the Mi’kmaq and the Crown. Celebrated annually on 1 October since 1986 (the year after the Simon case), this day honours the signing of the 1752 treaty.

Treaties and the Seven Years’ War in North America, 1754 to 1763

The Seven Years’ War (also known as the French and Indian War) was a time of violence in North America, first between the French and British, and later between the British and the Americans. In all of these conflicts, Indigenous nations wielded considerable influence because of their skilful diplomacy and because their fighting forces could effectively battle in conditions that were often extremely difficult for European and North American soldiers.

In the years leading up to the war, the British knew that their enemies, the French, had already made strong alliances with Indigenous peoples. They too wanted to forge strategic bonds with First Nations. Therefore, in 1755, the British imperial government in London took over the responsibility of treaty making from the colonies. A northern branch and southern branch of the British Imperial Indian Department, roughly separated by the Potomac and Ohio Rivers, were created as extensions of the military and placed directly under the king’s authority. The northern branch, with Covenant Chain expert Sir William Johnson at its head, was a source of further government growth and development for English-speaking Canada. There is a direct line of administrative continuity between Johnson’s department, which polished and extended the old Covenant Chain, and Canada’s modern-day Ministry of Indigenous and Northern Affairs Canada.

Through a series of treaties, Sir William Johnson, with the help of his Mohawk consort and adviser, Molly Brant, successfully neutralized the old French-Indigenous alliance during the Seven Years’ War. These treaties guaranteed the protection of Indigenous lands from Anglo-American colonists looking to take over lands north of the border. After the British victory over the French on the Plains of Abraham, Johnson made agreements with the Seven Nations of Canada (comprising of Mohawk, Abenaki, Anishinaabeg, Huron and Onondaga peoples) who inhabited Catholic missions near Lake Ontario and along the St. Lawrence Valley (seeSt. Lawrence River), to provide security with regards to their lands, trade and religion. One of these treaties was the Treaty of Oswegatchie in 1760. Another, in the same year, was the Murray Treaty of Longueuil, a peace treaty signed by General James Murray that was designed to provide the Huron with military protection and other freedoms and rights after the French retreated. The Sioui case in May 1990 tested the durability of this treaty. In that year, the Supreme Court of Canada ruled in a groundbreaking decision that the Québec and Canadian governments had infringed on the Huron’s rights to their traditional territory, as established by the Murray Treaty of Longueuil. The court ruled that the occupation of the territory in question by the Crown was subject to the rights and customs of the Huron.

The Royal Proclamation of 1763

Once the French army had been defeated in North America, the British government faced the question of how to conduct relations with the Indigenous peoples who still dominated most of Canada. An emerging loose confederacy of Indigenous nations, spearheaded by the Odawa leader Obwandiyag, also known as Pontiac, opposed British rule in what became known as Pontiac’s War (1763–66.) The confederacy captured nine British posts in Canada in the spring of 1763 and made the matter of establishing peace with Indigenous peoples even more pressing for the British.

Sir William Johnson was an active supporter of the Royal Proclamation of 1763 (precipitated by Pontiac’s War) which, in theory, created clear borders for the new British province of Québec and for the 13 Anglo-American colonies, and reserved the vast territory beyond the Appalachian Mountains for Indigenous peoples. He was also central in the signing of the part of the treaty that was ratified in Niagara in 1764.

The proclamation laid out a procedure for the future opening of portions of Indigenous territory for colonization and settlement by the Crown’s non-Indigenous subjects. Through the proclamation, the Crown claimed “dominion” and “sovereignty” over Indigenous territories and that only the Crown could make treaties with Indigenous peoples. Therefore, on the one hand, the proclamation seemingly protected Indigenous territories from encroachment by outsiders, but on the other hand, it left the possibility for just such encroachment by the Crown. The king decreed that no individual person or colony could purchase territory from Indigenous peoples; instead, the British Crown was to be the essential actor in negotiating treaties.

Affirmed by Section 35 of the Constitution Act, 1982, the Royal Proclamation forms the constitutional basis for Crown-Indigenous treaties in Canada. These principles are still being applied in the making of modern-day Indigenous treaties.

Treaty Making in British North America, 1764 to 1867

From the time of the Conquest to Confederation, British and Indigenous peoples made various alliances to secure against the Americans during the American Revolution and the War of 1812. The arrangements also provided the British with access to traditional territories for the purposes of white settlement and development. It was during this time period that the colonial government began pushing Indigenous peoples off of their homelands and onto reserves. While the earliest reserve in Canada (Sillery) dates to 1637, it was not until the mid-1800s that most reserves in Canada were created.

The Treaty of Fort Stanwix, 1768

The first Treaty of Fort Stanwix (another by the same name was signed in 1784) was the first major agreement negotiated according to the terms of the Royal Proclamation. When the dominant fur-trade companies of Pennsylvania made claims against the British government for damages incurred during the Seven Year’s War and Pontiac’s War, Indian Department officials tried to compensate them through a major land transfer. The Treaty of Fort Stanwix moved the border between Indigenous territory and the Anglo-American colonies significantly westward to the banks of the Ohio River.

The lands ceded in the treaty — most of modern-day Kentucky, Tennessee, West Virginia, Maryland and western Pennsylvania — were the ancestral homes of the Shawnee, Delaware, Cherokee, Seneca-Cayuga, Miami, Potawatomi, Mingo, Odawa and Wyandot. This led to the emergence of hardline leaders in the debate among the Indigenous peoples of the Great Lakes-Ohio Valley area about who was authorized to cede land in treaties.

Sir William Johnson, who was a land speculator, hoped that the Fort Stanwix Treaty would satisfy the entrepreneurial wants of the business community in both the Thirteen Colonies and in Britain. However, the deal only fed the land speculators’ greed. Some of those speculators, whose political representatives included Benjamin Franklin in Pennsylvania and Lord Shelburne in Great Britain, attempted to counter the Royal Proclamation by insisting that Indigenous nations could make land-ceding treaties directly with private colonization companies. Just when it seemed that these powerful business interests were about to prevail, the British government introduced the Québec Act in 1774 which favoured the fur-trade interests of Montréal over the land-speculation interests of Philadelphia, and treaty agreements made with Indigenous peoples over the expansionistic aspirations of Anglo-American settlers. This act was a major factor in the outbreak of the American Revolution in 1776 (see American Revolution – Invasion of Canada.)

The American Revolution and the Haldimand Grant, 1776 to 1784

While many Indigenous peoples tried to avoid involving themselves in the American Revolution, many others believed that a British victory would be the least threatening outcome. After all, it was the proponents of western expansionism who had driven the American Revolution forward. Mohawk leader Joseph Brant led many of his people, who had been especially active allies of the British, into battle. However, in spite of Indigenous peoples’ important role in the war, the diplomats who redrew the map of North America after the revolution paid no heed to the heritage of Crown treaties with Indigenous peoples. In the Treaty of Paris, 1783, a new international border was created along the Great Lakes that ignored both the Covenant Chain and the Treaty of Fort Stanwix. Indigenous nations were not invited to the Paris negotiations even though it was their lands that were traded back and forth.

Many Indigenous peoples, together with officials of the British army in North America, were thunderstruck at this betrayal. To address the resulting crisis, Québec Governor Frederick Haldimand made treaties in 1784 with the Mississauga north of Lake Ontario to open land for those Six Nations people who opted to migrate rather than live under the jurisdiction of the United States and New York state (see Haldimand Proclamation.)

In the years ahead, Brant chose to sell individual parcels of his people’s Grand River lands, which were part of Haldimand’s land grant. Brant based this right to sell lands directly (at full market value) to non-Indigenous buyers on the claim that his community was not limited by the Royal Proclamation, which prohibited transfers of Indigenous territory to anyone but the British sovereign.

Haldimand also prevailed in the decision of the British to retain possession of the military posts south of the Great Lakes, despite the fact that the posts were promised to the United States after the signing of the Treaty of Paris. This was to support the Montréal-based fur trade, whose hinterland continued to include the northern Mississippi Valley. Similarly, retention of the southernmost posts of greater Canada signalled to the Indigenous peoples west of the Ohio River continued imperial support for resistance to the American government’s agenda of westward expansion (see Manifest Destiny.)

The system of treaty alliance between the Crown and the Indigenous peoples of Canada briefly recovered from the diplomatic setback of 1783. Indeed, on the commercial level, the alliance expanded and flourished as never before. This expansion was marked in the growth and prosperity of Montréal, whose leading entrepreneurs organized the North-West Company (NWC.) Not only did the NWC hold and develop its trade network throughout the northern Mississippi Valley, and thereby strengthen the Crown’s alliances with Indigenous peoples there, the NWC’s agents were also led by Indigenous guides to the West Coast and the northwesterly reaches of present-day Canada.

In so doing, these NWC geographers, traders and diplomats, including Peter Pond, Alexander Mackenzie and David Thompson, expanded the influence of British imperialism and Canadian commerce over wider expanses of Indigenous territory. They competed against the Hudson’s Bay Company (HBC), who since 1670 had developed an extensive commercial presence among the Indigenous peoples of what was then called Rupert’s Land and the North-West Territories. Elaborate protocols of diplomatic and economic relations developed between Indigenous peoples and HBC officials. These relations also came into play later in the 19th century when Crown officials negotiated the Numbered Treaties to facilitate the expansion of the Dominion of Canada.

Ohio Valley Disputes and Jay’s Treaty, 1790 to 1794

Indigenous peoples refused to accept the new international boundary created by the Treaty of Paris that cut through their ancestral territory, or that their lands south of the new border now belonged to the United States. Officers of the British Imperial Indian Department, many of whom had Indigenous ancestors, wives and mixed-ancestry children, tended to share this sentiment. Under their urging, the British government refused to cede to the United States the lands north of the Ohio River and south of the Great Lakes. All that had been transferred was the British sovereign’s exclusive right to purchase land from Indigenous peoples through treaties, according to the principles outlined in the Royal Proclamation.

Not surprisingly, the United States government resisted this interpretation. In 1790 and 1791, they deployed to the area a small and ill-organized army which was twice defeated by the well-armed fighting forces of a growing Indigenous confederacy, also known as Miami Chief Little Turtle’s Illiniwek Confederacy.

Indigenous victories over the American army prompted the British government to adopt a new and ambitious strategy with regards to treaty alliances between the Crown and Indigenous peoples. The imperial government planned to encourage the confederacy to the point where it could assert international sovereignty over the lands between the Ohio River and the Great Lakes. The envisioned country was also known as the Indian Buffer State.

In the eyes of British imperialists, this sovereign Indigenous nation-state would have shielded what remained of British North America from the expansionistic designs of the new American republic, whose most aggressive advocates increasingly viewed North America through the lens of Manifest Destiny and imagined that the entire continent was the United States’ God-given inheritance.

The prospects for creating the new Indigenous nation-state dimmed when Little Turtle’s confederacy suffered defeat at the Battle of Fallen Timbers in 1794. This battle was lost in large part because the British failed to support Indigenous troops. As a result of the defeat, British officials agreed to abandon the posts south of the Great Lakes. The terms of this 1794 agreement, known as Jay’s Treaty, also stipulated that Indigenous peoples could freely cross the international border. This stipulation was included largely so that the Montréal fur-trade would not be cut off from its commercial relations with Indigenous peoples in the northern Mississippi Valley.

Although Jay’s Treaty is not technically an Indigenous treaty, its terms have had important ramifications. The United States government has honoured the agreement to the extent that Status Indians from Canada have been able to live and work in the United States without restriction. The treaty is not, however, recognized as binding by Canada — a position that is periodically challenged, especially by those Indigenous nations such as the Six Nations, whose lands are divided by the border.

Treaties and the War of 1812

The prospects of a sovereign nation-state for Indigenous peoples re-emerged in the first decade of the 19th century, as relations between Great Britain and the United States deteriorated. At the movement’s heart were two Shawnee men — Tecumseh and his brother Tenskwatawa (the Prophet) — who urged Indigenous unity in order to defend their dwindling lands.

At first, the religious visionary Tenskwatawa was the more influential of the siblings. When he related his prophetic revelations about delivering his people from outsiders, Algonquian-speakers of several nationalities flocked to his side, creating the new community of Prophetstown, south of Lake Michigan.

However, it was Tecumseh who gave the movement political direction. As war between the United States and Britain became imminent, Tecumseh advocated coordinated action. He aimed to elevate Indigenous treaty-making authority above the level of domestic contract to the level of full-fledged international relations. To assert this degree of sovereignty, Tecumseh’s confederacy would need a central government, a strong fighting force and a powerful ally. Great Britain could be that ally, though it fell primarily on Indigenous peoples to generate the unity that was needed to counter the American plan to absorb Indigenous territory.

The Shawnee strategists’ independence was compromised in 1811 after General William Henry Harrison’s American forces overran the confederacy’s capital at Tippecanoe (seeBattle of Tippecanoe.) This forced Tecumseh to form closer links with the British Imperial Indian Department.

When trade embargoes and conflicts at sea finally sparked the War of 1812, the rapid mobilization of the confederacy’s fighting forces were a deciding factor in the early course of the conflict. Especially decisive was the role of Indigenous peoples in the British takeover of Michillimackinac and Detroit (seeFirst Nations and Métis Peoples in the War of 1812.) The events of 1812, therefore, vindicated, for the British, the utility of the treaty system because it allowed military alliances to be formed.

For those on the Indigenous side of the alliance, the outcome was more tragic. After Tecumseh was killed in battle in 1813, the confederacy largely disintegrated. In the years that followed, many Indigenous people whose territories lay east of the Mississippi were forced to move west. Others, however, migrated from south of the Great Lakes across the border that was established in 1783 but not solidified until 1814, when the Treaty of Ghent ended the War of 1812.

Selkirk Treaty, 1817

While treaty making only really reached Indigenous peoples in western Canada after Confederation, an important treaty was made in 1817 by the Earl of Selkirk in what is now Manitoba. The Selkirk Treaty surrendered Indigenous title in areas “adjacent to [the] Red River and Assiniboine River.” The tract also extended into the United States as far as the Great Forks (also known as Grand Forks.) In exchange for their lands, the Ojibwa (Chippawa or Saulteaux) and Cree peoples were each awarded 100 pounds of tobacco annually. Five chiefs signed the treaty with drawings that represented an important aspect of their identity.

The Selkirk Treaty was the first treaty with Indigenous peoples in western Canada, in conformity with the Royal Proclamation of 1763. It was also therefore the beginning of the official relationship between Indigenous people in the West and the Crown.

Upper Canada Treaties, 1781 to 1862

Also known as the Upper Canada Land Surrenders, these agreements constitute an estimated number of 30 treaties covering much of what is now southwestern Ontario. Likely the first of these was Michilimackinac Island, No. 1, signed in 1781, and presumably the last was the Manitoulin Island Treaty, signed in 1862.

These surrenders initially provided Loyalists with lands on which to settle after the American Revolution. The Indigenous signatories, including many Anishinaabe peoples, the Huron-Wyandot, and other First Nations, received cash payments and other goods in return for title to the land.

In later years, many descendants of treaty signatories argued that their lands were unjustly taken. For example, the Mississauga argued that the Toronto Purchase, originally negotiated in 1787, covered unceded territory. Disputes over the accuracy of land allotments led to re-assessments and a revised treaty in 1805. However, the agreement ultimately still favoured the British because it expanded the Crown’s claim over the area and paid a measly 10 shillings for 250,880 acres of land. Moreover, this location was also chosen because of its strategic value, allowing access to waterways that facilitated the transfer of goods.

Indigenous peoples also claim that the signatories did not understand the terms of the treaty and that they never accepted the 1805 boundaries. It was only in 2010 that the Mississauga and the Government of Canada reached a settlement. As part of the deal, the Mississauga received $145 million in compensation.

Other well-known and controversial Upper Canada Land Surrenders are those that deal with Manitoulin Island and the Saugeen Peninsula, also called the Bond Head Treaties. In 1836, Lieutenant-Governor Sir Francis Bond Head shifted Indigenous policy by ceasing to encourage Indigenous peoples to become Christian farmers. Instead, he wanted to move them to Manitoulin Island on Lake Huron and the Saugeen Peninsula north of Owen Sound. There, they could hunt and fish without encroachment from settlers. This plan also spoke to the stereotype of “noble savagery” — a view held by the lieutenant-governor and many of his contemporaries. By the terms of these two 1836 treaties (one for each region), both areas of land had been reserved for Indigenous peoples.

The plan was not only to displace Indigenous agriculturalists from Upper Canada, but also the expected Indigenous refugees from south of the Great Lakes, whose lands the American government now claimed. Bond Head was met with international criticism for his plan because some argued that it was apartheid (racial segregation).

In 1854 and 1862, new treaties were drawn up for the Saugeen Peninsula and Manitoulin Island, respectively. The agreements stipulated that the Indigenous peoples involved would be paid regular interest on funds from all Crown sales of the ceded (surrendered) territories. This promise failed to win the participation of an entire community of Roman Catholic Odawa people on the eastern portion of Manitoulin Island. They were uninterested in part because hunting and fishing still supplied their needs. With support from their Jesuit missionaries, these Odawa people successfully resisted signing the Manitoulin treaty. To this day, Wikwemikong, Ontario, remains an unceded Indigenous reserve.

By the mid-1830s, treaties covered most of the arable lands in Upper Canada. These treaties involved an initial distribution of goods and money with promises of small annual payments. Only gradually did the principle develop that agreements should include allocation of reserves.

The Robinson Treaties, 1850

The concept of reserves was advanced in 1850, when Crown representative William Benjamin Robinson secured agreement from Indigenous leaders to “cede, grant, and convey unto Her Majesty” about 50,000 square miles (129,500 km2) north of the upper Great Lakes. These transactions, known as the Robinson-Huron and Robinson-Superior treaties, provided for the creation of 24 new reserves, each to be held by the Crown for the “use and benefit” of the nations whose leaders’ names and marks were on the agreements. Also included in the bargain were initial payments worth £4,000, plus “perpetual” annuities valued at about £1,100.

Governor General Lord Elgin and Chief Shinguakouce pressured Canadian officials to authorize treaty negotiations. In a relatively minor 1849 confrontation, referred to as the Michipicoten War or the Mica Bay Uprising, a resistance movement made up of Indigenous peoples and Métis people asserted their uncompromised interest in the Precambrian Shield, where Canadians had already begun minor mining operations. This war precipitated the treaty agreements.

In the Robinson Treaties, the Crown promised that Indigenous peoples could hunt and fish throughout the ceded territory “as they have heretofore been in the habit of doing.” This promise, the first of its kind in an Indigenous treaty, was made, Robinson explained, so that Indigenous peoples could not make future claims in return for the loss of their usual means of support. The Robinson Treaties became important models for the treaty negotiators of the Numbered Treaties that followed in the late 19th century and into the 20th century.

The Vancouver Island Treaties (Douglas Treaties), 1850 to 1854

While treaty making up until 1850 was only conducted in the Maritimes, Manitoba and Upper Canada, the Douglas Treaties (named after Governor James Douglas) were signed between 1850 and 1854 with 14 First Nations on Vancouver Island. Also known as the Vancouver Island Treaties, First Nations exchanged approximately 930 km2 of traditional territory for clothing, cash and other goods. They were told they would still be able to live, hunt and fish on the surrendered lands. With the influx of white settlers, however, Indigenous peoples were increasingly pushed off of these territories and onto reserves.

Descendants of the Indigenous signatories have questioned the legitimacy of the treaty proceedings. As non-English speakers, the chiefs were unable to verify on paper the terms of the agreement, which were communicated verbally. Signing the bottom of the treaty pages with an X, chiefs believed they were agreeing to share — not to cede — their lands. Their descendants have also argued that colonial officials inserted new clauses onto blank pages of the treaties that had already been signed without the consent of Indigenous peoples.

Elders and researchers at the University of Victoria have since translated the Douglas Treaties into the languages of the Sencoten and Lekwungen First Nations for the first time. For the Indigenous signatories of the Douglas Treaties, this was a step towards reconciliation.

Post-Confederation Treaties, 1867 to 1975

The years immediately following Confederation were characterized by the Canadian government’s desire to expand westward and northward as a means of securing the nation’s economic future. This led to the signing of various treaties between the government and Indigenous nations in the Prairies and parts of the North, British Columbia and northern Ontario. These treaties include the Numbered Treaties and the Williams Treaties.

The Numbered Treaties, 1871 to 1921

The 11 Numbered Treaties were negotiated between 1871 and 1921 as the Canadian government sought to extend its sovereignty over western, and portions of northern, Canada. Confederation in 1867 set the stage for Canada’s purchase from the Hudson’s Bay Company of Rupert’s Land and the North-Western Territory. As a result of the transfer, the Canadian government legally assumed responsibility for the “protection” and “well-being” of the region’s Indigenous peoples.

The duty of compensating Indigenous peoples for their interest in their traditional territories also fell to Canada. Therefore, the treaty-making system that had evolved in Upper Canada in the years before Confederation was exported westward and northward. Further development of the treaty system was based more on economic practicality than it was on any conception of Indigenous rights. During the 1870s, the United States government spent over $20 million fighting Plains peoples. This amount was larger than the entire budget of Canada, and so federal officials relied on treaties to ensure relatively peaceful consent to Euro-Canadian settlement from the territory’s approximately 35,000 Indigenous inhabitants.

The newly formed North-West Mounted Police (NWMP) became an important factor in the negotiation process. Following their arrival in 1874 in present-day southwest Alberta, the NWMP became influential among the Siksika, Piikuni, Kainai, Tsuu T’ina and Stoney-Nakoda. Although their role was to restrict Indigenous movement in their reserves, thereby altering their traditional way of life, the police did manage to build relatively positive relationships with Indigenous peoples by driving out American whisky traders. In this police-controlled atmosphere, treaty negotiators and Indigenous leaders signed various treaties.

Crown officials negotiating the first Numbered Treaties were instructed to offer terms similar to those in the Robinson Treaties. The Indigenous delegations in these and following bargaining sessions, however, made it clear that more was expected. Indigenous peoples sought to cope with the destruction of their economies — notably, the decimation of the bison on the prairies — through treaties. From some Indigenous peoples’ perspectives, the spirit and intent of 19th and early 20th-century treaties therefore includes a commitment from the Canadian government for the instruction and material aid necessary for transitioning to a new way of life.

In many cases, however, promised provisions and goods were delayed or never made their way to the First Nations. The $5 annual cash payment that many treaty peoples received (and still receive) also made no significant addition to the family purse. According to some Indigenous peoples, however, this exchange does signify the persistence of Indigenous-Canadian treaty relationships.

Métis Scrip

After the Manitoba Actof 1870, the Canadian government attempted to extinguish Métis title using scrip, dollar-valued land certificates. Unlike with the First Nations, Métis peoples were dealt with on an individual basis. Allotments of land totalling about 160 to 240 acres were available where scrip was issued. However, in order to redeem scrip, many Métis had to travel long distances to access the Lands Title offices. The burden of relocating their families, coupled with an overly-complex application process, meant that scrip was often not redeemed or was sold for a fraction of its real worth.

Efforts to implement this scrip program were also often undermined by the fraudulent activities of “jobbers,” who amassed the majority of the resources originally earmarked for Métis communities. Fraudulent land speculators claimed to represent Métis heads of household and managed to claim land that was not rightfully theirs. The authorities eventually amended the Criminal Code in 1921 to include these criminal behaviours. Nevertheless, many Métis people were cheated out of their land.

In 2013, the Supreme Court of Canada ruled that the government had failed in its obligation to properly distribute and safeguard the 1.4 million acres set aside for the Métis in the Manitoba Act. While the court made no specific remedies, it acknowledged Métis rights to their homelands.

Williams Treaties, 1923

Since the late 19th century, Chippewa and Mississauga peoples in the Simcoe and northern Lake Ontario regions had been trying to get the government to recognize errors in some early colonial treaties. For example, a large tract of land in the area around the Muskoka and Upper Ottawa River was not included in the Upper Canada Treaties. Appointed by the federal minister of justice in 1916, R.V. Sinclair began to investigate these matters. He confirmed that there were in fact many problems with the treaties’ allotment of lands and that not all lands had been fully ceded.

In 1923, the Canadian and Ontario governments appointed a three-man commission to further investigate the issue. Sinclair joined lawyers Uriah McFadden and A.S. Williams in what became known as the Williams Commission. Their report validated the claims of the Indigenous peoples not only to the territories in question, but also to other portions of land below Lake Simcoe and on the north shore of Lake Ontario.

Since the government had already opened these areas up for white settlement and for the exploitation of natural resources, the commission began negotiating two treaties known as the Williams Treaties. The first treaty with the Chippewa in 1923 covered the lands from Georgian Bay to the Ottawa River. The second, also signed in 1923, but with the Mississauga, covered the lands from Lake Simcoe down to the shore of Lake Ontario. In signing the Williams Treaties, the Indigenous peoples not only surrendered their title to the land but also their hunting and fishing rights on the properties — a significant departure from what had become common practice in the Robinson and Numbered Treaties.

Land Title, Rights and the Indian Act, 1920s to 1970s

While in Ontario and the Prairie provinces, the development of a system of land tenure was firmly founded on Indigenous treaties, elsewhere in the country (i.e., most of British Columbia, the Yukon, the Northwest Territories, Québec and the Maritimes), non-Indigenous settlement, for the most part, proceeded without purchase of Aboriginal title. Registered Indigenous peoples (seeIndian) were nevertheless allocated to reserves and, even without treaties, fell under the direct administrative control of the federal government.

Indian affairs were governed more by the federal Indian Act than by Indigenous treaties. First introduced in 1876 as a consolidation of previous colonial ordinances that aimed to eradicate First Nations culture in favour of assimilation into Euro-Canadian society, the Indian Act became the principal statute through which the federal government administers Indian status, local First Nations governments and the management of reserve land and communal monies. The Act has been amended several times, most significantly in 1951 and 1985, with changes mainly focusing on the removal of particularly discriminatory sections.

Nisga’a Treaty, 1973 to 2000

Indigenous peoples from British Columbia were largely responsible for breaking through the weight of political disinterest that had set in around the Indigenous land question since the early 1920s. Although the Douglas treaties had been made in the 1850s on Vancouver Island, and eight First Nations in British Columbia had signed Treaty 8 in 1899, officials since then have consistently resisted the view that Indigenous peoples in the province have inherent Indigenous rights.

The Nisga’a people of the Nass River Valley (seeNass River) have long opposed this position. In 1969, Nisga’a chief Frank Calder represented his nation in a court case against British Columbia. Known as the Calder case, the Nisga’a tried to establish that they had never surrendered title to their homelands. Although the British Columbia Supreme Court ruled against the Nisga’a, the Supreme Court of Canada agreed to hear their appeal. Six judges were split evenly on the validity of the Nisga’a claim: three argued that Nisga’a title had been extinguished by land laws made before British Columbia entered Confederation; the other three disagreed, declaring that the right was never extinguished (surrendered) by statute or treaty, which is what the Nisga’a had argued. The seventh judge, Justice Pigeon, tipped the balance against the Nisga’a on a procedural point — that the Nisga’a had failed to obtain permission to sue the Government of British Columbia from the attorney general. Therefore, the Nisga’a lost based on a technicality, but the case served as a catalyst for change, concerning the recognition of Indigenous rights in Canadian law.

The Nisga’a case was one of several key developments that helped cast Indigenous rights into the spotlight in Canada during the 1970s. The pivotal event had been the publication in 1969 of a federal White Paper on Indigenous policy, which reflected the ideology of Prime Minister Pierre Trudeau. He advocated ending treaties and thereby removing special status for Indigenous peoples. To Trudeau, who also opposed special constitutional status for the Province of Québec, it was an “anomaly” (to use Jean Chrétien’s words) to have treaties between nations within Canada. Indigenous peoples strongly opposed the White Paper, and were galvanized into stronger political cohesion and activism as a result. The year after the Supreme Court’s Nisga’a decision in 1973, there was a change in federal policy: an Office of Native Claims was established to resolve Indigenous land disputes.

Beginning in 1976, the Nisga’a and the Trudeau government entered into treaty negotiations. Fourteen years later, in 1990, both parties reached a preliminary agreement, and also welcomed the Province of British Columbia into the negotiations. In 1996, the three parties finalized the agreement, but it was not until 2000 that the Nisga’a achieved self-government. The deal also put the Nisga’a in control of around 2,000 km2 of their ancestral territory. The Nisga’a Treaty is the first modern-day treaty in British Columbia, and has served as a model for many future First Nations seeking self-government and modern treaty agreements in Canada.

Modern Treaties, 1975 to present

Established in 1974, the Office of Native Claims (ONC) defined two types of modern land claims: specific and comprehensive. Specific land claims address Indigenous grievances over the failure of the federal government to keep promises made to them in the Indian Act, historic treaties or other agreements. Comprehensive land claims deal specifically with questions about land title. A comprehensive claim can be made for any part of Canada where Aboriginal title has never been ceded. The Specific Claims Tribunal (2008) has since supplanted the ONC and is the federal body that continues to hear specific and modern land claims.

James Bay and Northern Québec Agreement, 1975

The 1975 James Bay Agreement is often considered to be Canada’s first modern-day treaty. As in earlier times, a move to open up a new resource frontier — in this case, the hydroelectric potential of the rivers flowing into the eastern region of James Bay — led to negotiations with Indigenous peoples. Although the enormous hydroelectric project was initiated in 1971 without their sanction, the area’s Cree and Inuit peoples asserted their unceded Indigenous rights through the courts. The Cree also used the media to assert their rights (seeJames Bay Project.)

In the complex settlement that ensued, the agreement established a basis for various institutions of Cree and Inuit self-government, such as school boards and health and social service agencies. In 1978, as an adjunct to the James Bay Agreement, the Naskapi band of Schefferville concluded the Northeastern Québec Agreement with the federal and provincial governments.

The negotiation of modern-day treaties somewhat stagnated during Prime Minister Brian Mulroney’s first term (1984-88.) However, this state of affairs was to change during Mulroney's second term (1988-93.) In June 1990, Elijah Harper, an Oji-Cree MLA from Manitoba, blocked a sweeping revision to the Canadian Constitution negotiated at Meech Lake by the 11 first ministers without Indigenous representation (seeMeech Lake Accord: Document.) The next month, an argument between the Mohawk of Kanesatake and the town council of Oka over a proposed golf course flared into an armed standoff (see Oka Crisis.) In 1991, the government appointed a Royal Commission on Aboriginal Peoples just as a surge of new political interest was invested into modern-day treaty making. The Oka crisis and other First Nation activism helped to bring Indigenous issues to the fore.

Modern-Day Treaties in Northern Canada

This surge of political interest in treaty making was mostly evident in the territories north of the 60th parallel, where bilateral, nation-to-nation negotiations led to the making of the Inuvialuit Treaty (1984), the Gwich’in Comprehensive Land Claim Agreement (1992), the Nunavut Land Claims Agreement (1993) and the Sahtu Dene and Métis Comprehensive Land Claim Agreement (1993.)

From 1993 to 2005, the 11 First Nations of the Yukon First Nations Final Agreements also received their own modern treaties. These nations include: Champagne and Aishihik, Na-cho Nyak Dun, Teslin Tlingit Council, Vuntut Gwich’in, Little Salmon/Carmacks, Selkirk, Tr’ondëk Hwëch’in, Ta’an Kwäch’än Council, Kluane, Kwanlin Dün and Carcross/Tagish.

In 2003, the Tlicho from the central Northwest Territories celebrated the enactment of the Tlicho Land Claims and Self Government Agreement.

Following the James Bay Treaty, these agreements have enabled Indigenous communities to set up municipal and corporate structures and to allow them to participate as shareholders in the exploitation of natural resources.

Modern-Day Treaties in British Columbia

In British Columbia, there are not only two but three types of government involved in the negotiation of modern-day treaties — federal, provincial and Frist Nation. In 1991, treaty negotiations with some Indigenous nations in British Columbia began.

 

The Justice System and Aboriginal People

The Aboriginal Justice Implementation Commission

  

 

 

ABORIGINAL & TREATY RIGHTS

Introduction
Aboriginal-Crown Relations

The Devolution of Indian Affairs
The Calder Case and Land Claims
Constitutional Reform

The International Origins of Aboriginal and Treaty Rights

Introduction
The Basic Features of International Law
The Roots of Aboriginal Rights in International Law
The Use of Doctrines of International Law
The Application of International Law to Aboriginal Peoples in Canada
Other Rationales Supporting Colonization
Conclusion

The Evolving Law on Aboriginal and Treaty Rights

Introduction
The Legal Authority to Enter into Treaties
The Manitoba Treaties
The Relationship of Treaties to the Indian Act
Problems with the Validity and Text of Treaties
The Impact of the Constitution Act, 1982

Land Rights

Indian Reserves
The Development of Treaty Land Entitlements
The Formulas
The Present State

The Most Recent Treaty—The Northern Flood Agreement

Background
The Terms of the Agreement
Breaches of the New Treaty

Land Claims

Specific Claims
Comprehensive Claims

Natural Resources

Hunting, Fishing and Trapping Rights
The Special Issue of Wild Rice
Timber Rights
Water Rights
Subsurface Resources

The Special Position of the Metis

Political Developments since 1870
The Conflict over Metis Rights
Metis Arguments for Their Rights

The Indian Act

Continuing Discrimination
Paternalism in Legislative Form

Statutes in Conflict with Treaty and Aboriginal Rights

Conclusion

 

 

Aboriginal and Treaty Rights

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The earth does not belong to man; man belongs to the earth. This we know. All things are connected like the blood which unites one family. All things are connected. Whatever befalls the earth befalls the sons of the earth. Man did not weave the web of life; he is merely a strand in it. Whatever he does to the web, he does to himself.

Chief Seattle, 1854
Aboriginal Worldview

Man is the measure of all things.

Protagoras, Greek Philosopher (458–410 B.C.)
European Worldview

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Introduction

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When Europeans came to the Americas they were considered outsiders but, in accordance with the Aboriginal view, were permitted to share in the land and its resources. Elders have told us that, in the eyes of the Creator, the Europeans as outsiders could not enjoy the same rights as the original inhabitants. Whatever rights the Europeans wanted had to be sought from those who were placed upon the land first by the Creator. It is a belief common to many Aboriginal societies that the Creator placed Aboriginal people upon this land first for a reason, and that, as the first ones on the land, they were placed in a special relationship to it. In the worldview of Aboriginal people, the Europeans were visitors and, as such, were bound to respect the obligations of that status.

For Aboriginal peoples, the land was part of their identity as a people. The earth was their Mother, the animals were their spiritual kin and all were part of the greater whole, which was life. Their culture was grounded in nature. Time was marked by the changing seasons and the rising and setting of the sun, rather than by numbers, and their existence was marked by an acceptance of and respect for their natural surroundings and their place in the scheme of things. The thinking of Aboriginal peoples was cyclical, rather than linear like that of the Europeans. Everything was thought of in terms of its relation to the whole, not as individual bits of information to be compared to one another. Aboriginal philosophy was holistic, and did not lend itself readily to dichotomies or categories as did European philosophy. So, for Aboriginal people, their rights were—and still are—seen in broad, conceptual terms.

The most fundamental of those rights is the right to their identity as Aboriginal people. Since that identity was derived largely from the land they used and occupied before the arrival of the Europeans, they believe they had—and still have—certain rights in regard to the land, including continuing habitation and use of the land, whether it be for hunting, fishing, trapping, gathering food and medicines, or for any other traditional pursuits.

This right to identity also implies the further right to self-determination, for it is through self-determination that a people preserves their collective identity. The right to self-determination can take several forms. It includes, among many other things, the authority to retain one’s culture in the face of threatened assimilation, the right of a child to be raised in his or her own language and culture, and the right to choose between an Aboriginal and a non-Aboriginal way of life. This latter right is violated if the traditional economy of an Aboriginal group is disrupted severely or damaged by the encroachments of a civilization that exploits or abuses natural resources on a large scale, such as a hydro-electric project, a pipeline or a strip mine. Further, the right to self-determination implies the right to take charge of one’s own affairs so as to ensure effectively that Aboriginal identity and culture will be respected in the political sphere. These are the Aboriginal rights of the indigenous people of Canada.

Like Aboriginal rights, treaty rights are also understood by Aboriginal peoples in broad, conceptual terms. Unlike Aboriginal rights, however, treaty rights are more susceptible to the restrictive interpretations of the federal and provincial governments. Governments have claimed that treaty rights are limited to written promises made to Aboriginal groups by the Crown in specific treaties. In return for these promises, First Nations in Manitoba are purported to have agreed to "yield up" the land they traditionally used and occupied, and to move to reserves in order to make room for the expanding white settlements.

The signing of the post-Confederation numbered treaties in Manitoba was a solemn affair, resulting from negotiation through a bilateral, consensual process. Indian tribes in Manitoba had been using the formality of the treaty-making process for many generations prior to the arrival of the Europeans and, to those tribes, the solemnity of the occasion marked the new relationship. The representatives of the Crown were well aware of the importance of the process to the Indian tribes and, as some writers have pointed out, took advantage of that sense of importance. To a large extent, Indian tribes negotiated for what they could, but were faced with negotiators whose mandate was to obtain signatures upon the treaty documents by whatever means necessary. Their view of the importance of the treaty differed considerably from the Indians’.

The European objectives were to exercise complete control over the land, and to make it safe for settlement and for the development of its resources. In negotiating the treaties, the newcomers sought to provide the minimum in benefits in return for peace and control of the land.

Nevertheless, many provisions in the treaties were included at the insistence of the Aboriginal groups. Many verbal promises, not included in the written versions of the treaties, were made to reassure the Indian representatives about the exact nature of the agreements. The promises, both written and oral, were to be good "as long as the sun shines, the grass grows, and the rivers flow." These promises are just as important as the written words defining treaty rights.

Aboriginal people consider the treaties to be agreements made between sovereign nations. Aboriginal signatories agreed to give up only their rights to certain tracts of land, not their right to govern their own lives and affairs. While Europeans considered the treaties as transfers of title to land, Aboriginal nations perceived them merely to be agreements to share the land, as they did with the animals and other groups. Aboriginal peoples perceived the treaties as agreements only to share the land because the concept of legal title to land, as the Europeans understood it, was foreign to their culture. Clearly, however, Aboriginal people did have a strong concept of territory—individual occupation of specific parcels of land was an acknowledged part of almost all Aboriginal societies. However, land was not something which an individual could divide, transfer, surrender, destroy or own to the exclusion of all others. The land was there to be shared, as it was the source of all life.

Today, Aboriginal peoples believe their treaty rights have become a series of broken promises. Time and time again during our hearings, people spoke eloquently about their understanding of the treaties and their frustrations at the manner of their treatment. Aboriginal people in Manitoba firmly believe that despite, or perhaps more properly, because of the treaties they entered into with the Crown, they were to have been allowed to retain part of their land, to retain their identities, their cultures, their languages, their religions and their traditional ways of life, including their laws and their systems of government. Those things have been denied to them.

Even the manner in which the reserve land was set aside for the various First Nation signatories has been a source of frustration. Instead of reserves being viewed by government as land for which Aboriginal people retain their original title, the government has persisted in the view that land was surrendered to the Crown, which then "gave it back" to Aboriginal people.

Aboriginal people were to have been partners in the new arrangement, with an equal say in defining their ongoing relationship with the Crown. They have been denied that.

The various promises made under treaties were explained to and understood by Indians in broad, conceptual terms, and were to include a commitment to the economic development of reserves and to the education of the members of their community, and a respect for the tribe’s traditional form of government. The treaties, according to the understanding of Aboriginal peoples, were arrangements between two groups who had agreed to share the land and respect each other’s autonomy. Aboriginal people wanted to choose and direct how Western influences would affect them, but they never got the chance.

Today, the treaties are still important to Aboriginal peoples because they represent a state of affairs that was abrogated arbitrarily and unilaterally by one party: the government. That is why Aboriginal peoples insist that the Crown respect the "spirit" and "intent" of the treaties, and not just the precise written "terms."

In the courts, in Parliament and in land claims negotiations, the messages from the non-Aboriginal side of the process have been mixed. In 1852 the Upper Canada Court of Queen’s Bench rejected the notion of Indian rights, arguing that "the common law is not part savage and part civilized."1 In 1964, in a Supreme Court of Canada decision dealing with the important issue of whether Indian hunting rights were nullified by the general provisions of the Migratory Birds Convention Act, the court was more intrigued by the issue of whether there had to be proof that the duck in question was wild rather than tame.2 With respect to the issue concerning the validity of hunting rights guaranteed by treaty, the court ruled those rights invalid in two sentences by relying upon the Court of Appeal’s earlier judgment in the case, in which Parliament was viewed as possessing the authority to breach treaties if it intentionally chose to do so.

In the 1970s a remarkable shift in judicial attitudes began. The Supreme Court of Canada began to demonstrate its change in thinking when six of seven judges declared that Aboriginal title to land was recognized by the common law.3 The most dramatic example is a 1984 Supreme Court decision which affirmed an Indian band’s title to reserve land on the basis of the pre-contact Indian legal order.4 In a case the following year, the Supreme Court also held that it was no longer acceptable to be bound by the biases and prejudices of another era, and that "treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians...."5

These recent pronouncements from the Supreme Court are clearly inconsistent with the traditionally hostile judgments of the past. They have been followed by a number of other decisions over the past five years that have further expanded the importance to be given to Aboriginal and treaty rights at law. Nevertheless, many questions and uncertainties remain regarding the content of these rights, their effect on existing legislation and the scope of Crown obligations to Aboriginal people.

If the courts have been unclear, then Parliament and non-Aboriginal political leaders have been equally so. The long-standing question as to the exact nature and extent of Aboriginal and treaty rights has yet to be resolved through legislation, or agreement, while legislation dealing adequately with the issue of Aboriginal self-government has been nearly nonexistent.

The expectations raised by four First Ministers’ Conferences in the mid-1980s and the House of Commons Special Committee Report of 1983 on Indian self-government have yet to yield the promised and needed constitutional and legislative reforms.

The proper method of land claims settlements, as well, has yet to be determined. In the Yukon and Northwest Territories, negotiations have been dragging on since 1973; in British Columbia they have barely begun; on the Prairies, agreements-in-principle to resolve outstanding treaty land entitlements either have not been reached or are yet to be implemented. In Manitoba a 1984 agreement-in-principle between treaty entitlement chiefs and the provincial and federal governments to resolve outstanding treaty land entitlements was never ratified by the federal government.

The absence of clarity or significant initiatives on the part of both the federal and provincial governments has resulted in frustration, anger and conflict. This has cast a dark cloud over the relationship between Aboriginal people and government, not only in Manitoba but throughout Canada. As we will indicate in greater detail below, rectifying the historic injustices, while extending proper respect and substance to Aboriginal and treaty rights, is vital for the well-being of all Canadians. Clearly, restoring honour to the Crown, while rebuilding Aboriginal communities, is needed. TOP

 

Aboriginal-Crown Relations TOP

The relationship between Aboriginal peoples and the newcomers has been of great importance to both sides since the earliest days of contact between European explorers and the original inhabitants of this land. Representatives of European monarchs arriving on this continent found Indian nations with highly sophisticated economies, governments, cultures, legal regimes, religions and trading relations. Recent evidence suggests that there were as many as eight million indigenous people throughout what is now Canada and the United States in the early 17th century, with approximately three million residing in what was to become Canada.

The Indian nations of the eastern seaboard welcomed the newcomers, assisted them to survive in a foreign land and offered to share the resources of their territory with them. Formal treaties defining a system of peaceful co-existence and respect for each group’s separate identity were negotiated in the early 1600s. This pattern of utilizing treaties to determine the nature of the European-Aboriginal relationship was proposed by each side, as it reflected the approach previously used both in North America and in Europe.

The British Crown adopted this practice (already implemented by the Dutch and other European nations at least as early as 1664) by negotiating the Two Row Wampum Treaty with the Iroquois Confederacy. At the core of this treaty was the concept of peaceful co-existence. The British were to travel on the river of life in their large ship containing their laws, religious beliefs, customs, traditions and ways of life. Travelling alongside, but separate in their canoe, were the Iroquois, who carried with them the Great Law of Peace and their traditions, customs, spiritual beliefs and way of life. Each nation would enjoy the bounty of the lands and waters but would continue to govern its own affairs as independent nations.

Great Britain, for a time, did pursue a policy of respecting the land and harvesting rights, as well as the autonomy of Indian nations. Not only was this in keeping with emerging standards of international law, enunciated by Francisco de Vitoria, Bartolome de las Casas, Grotius and others, but it also reflected self-interest. Britain wished to maximize commercial trade with Indian nations, particularly regarding furs, which was fostered by developing a positive relationship.

In addition, the numbers and military superiority of the Aboriginal inhabitants meant that peace and friendship were an astute policy to pursue. Furthermore, the British government was in competition with other Europeans, especially the French. Thus, Indian allies were vital to British ambitions. As a result, the treaty-making process, coupled with respect for Aboriginal land rights and sovereignty, quickly became the cornerstone of official British policy. Numerous treaties were negotiated with various Indian nations along the east coast throughout the 1700s, including several with the Micmac and Malecite nations of what has become Atlantic Canada. This policy was codified in a sense through the Royal Proclamation of October 7, 1763, which was promulgated after the British victory over France and the Treaty of Paris of 1763. The Royal Proclamation was designed to determine both the future of the newly acquired colonies of Quebec, Florida and Grenada, as well as relations with Indian nations.

The Royal Proclamation officially declared that the Indian nations who remained within the borders of any of the British colonies were not to be "molested" in their possession of traditional territories. The 1763 Proclamation of King George III put it this way:

And Whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.6

If the Indian nations chose to surrender any or all of their lands within the new and existing colonies, then this could occur by treaty, with the specific process described in the Proclamation. It is interesting to note that the major elements of the treaty process outlined by the Royal Proclamation (such as requiring a public meeting in the presence of Crown representatives and allowing only the Crown, rather than private individuals, to make treaties) are still reflected in the Indian Act surrender requirements and the general land claims process. Those Aboriginal people residing outside these colonies were to be left untouched by settlers and local colonial governments, according to the Proclamation.

While much has transpired since 1763 in the Aboriginal-Crown relationship, the essential elements of the Royal Proclamation remain. The Proclamation has become one of the founding constitutional documents of Canada and has clear implications for Manitoba. It is appended as a schedule to the Constitution Act, 1982 and expressly referred to in section 25(a) as part of the Aboriginal rights shielded from any negative effects of the Charter of Rights and Freedoms.

This treaty-making process, which the Proclamation enshrined, was used to acquire land for settlement throughout most of modern-day Ontario from the beginnings of Upper Canada until the Williams Treaty of 1923. (An adhesion to Treaty 9 dates even later.)

Such treaty making was used in what became Manitoba, beginning with Lord Selkirk’s treaty in 1811 and followed by the numbered treaties, starting with Treaties 1 and 2 in 1871.

However, treaty making for Aboriginal people was not started by the Royal Proclamation, for the evidence is clear that Aboriginal people were making treaties among themselves long before the arrival of the Europeans and for some time after their arrival, prior to the Proclamation.

While some have argued that the terms of the Royal Proclamationof 1763 are limited to certain geographically defined areas of North America, and that the area formerly covered by the Crown grant to the Hudson’s Bay Company is not included, we think that such an interpretation misses the point. The Royal Proclamation did not create Aboriginal title and it is clear that it is not the only legal recognition of Aboriginal rights. Part of the importance of the Proclamation is the process which it identified as the means by which Aboriginal title was to be addressed. It was a clear recognition that the rights of Aboriginal peoples were to be "purchased" fairly through treaties and not simply to be ignored.

Aboriginal title has been part of our common law since settlement. Imperial, colonial, federal and provincial governments have never attempted to legislatively define either Aboriginal title or Aboriginal rights. The Crown has never sought to expressly extinguish Aboriginal title. The one exception to this appears to be the case of the Metis, to whom 1.4 million acres were to be granted in exchange for their "Indian title" under the Manitoba Act, 1870. Neither the judiciary nor governments has delineated a clear perspective regarding the meaning and status to be attributed to the rights of the original owners of Manitoba. For this reason, uncertainty remains today as to the full extent of outstanding Aboriginal and treaty rights in this province.

Two fundamentally different perspectives exist. For their part, Aboriginal people still believe that they have an obligation to protect and nurture the land and all living things. They regard themselves as stewards or caretakers of their traditional territory, with a continuing right to use the land and share in its bounty. They further believe that they have maintained the authority to govern their own affairs.

Treaties are still seen by them as solemn agreements between sovereign nations, designed to confirm their Aboriginal rights and supplement them with express commitments from the Crown. In return, the Aboriginal nations agreed to share their land with the Crown for the benefit of its subjects, by allowing the Crown to make land available for settlement. Other lands were reserved for exclusive Aboriginal use under Aboriginal control.

Federal and provincial governments, on the other hand, have tended to view the relationship in a rather different light. The Crown wished to acquire land free from Aboriginal title so that it could resell it to immigrants seeking a new start. The Crown wished to populate its new colonies rapidly and extensively. Governments believed that Aboriginal peoples would eventually disappear. They sought to foster this process through policies of assimilation. Governments clearly thought that Aboriginal rights would decline in importance, and the treaties in Ontario and the Prairies were designed to allow that transition to occur at an appropriate pace. The treaties themselves were drafted to reflect an absolute surrender of Aboriginal title to land, while contrary assurances of an ongoing, respectful relationship were being given by Crown negotiators. While the Crown’s representatives were making promises during treaty negotiations that Aboriginal people would not be disturbed in their way of life, the federal government was developing a policy designed to achieve the opposite.

Over time, the federal and provincial governments came increasingly to the view that the treaties and Aboriginal rights were relics of the past that could be ignored with impunity. Once the governments had achieved title over the land, the treaties had no significance to them.

What little significance the treaties did retain for the federal and provincial governments was largely a result of court decisions and the reluctant acceptance that they were still important in the eyes of Aboriginal people. However, the effect of the treaties was restricted as much as possible. The nation-to-nation relationship that had been the cornerstone of dealings between the Crown and Aboriginal peoples for three centuries was transformed thoroughly during the 20th century, after most of the Manitoba treaties had been signed.

As we have discussed in our chapter on the history of the relationship between Aboriginal people and the justice system in Manitoba, much of the century which followed the signing of the treaties was marked by the cultural repression and impoverishment of Aboriginal people. Indian agents tightly controlled the economic and political affairs of Aboriginal communities. The process of reasserting sovereignty has been a slow and often painful one for Aboriginal people. Gradual gains such as enhanced civil rights were offset by setbacks such as the disastrous child welfare policies of the 1960s and 1970s. Ironically, it was a government policy document, advocating the extinguishment of rights and the assimilation of cultures, which provided the spark to reignite Aboriginal self-determination. The 1969 federal White Paper galvanized response and resulted in a new political cohesion of Indian groups. TOP

 

The Devolution of Indian Affairs

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Another of the repercussions of the rejection of the White Paper was the acceleration of the removal of the individual Indian agents. Although Indian bands began evicting agents in 1965, the vast majority remained under the tight control of the local agents as the 1970s began. This changed rapidly as the Department of Indian Affairs withdrew its officials to district and regional offices, thereby allowing chiefs and councils to run their own meetings and set their own priorities. Bands began to establish their own civil services and to operate their own programs on reserves. The process of devolving control over the delivery of community services has continued over the past 20 years. It is extremely important to realize that local Indian governments have only been functioning with any level of authority for little more than two decades. TOP

 

The Calder Case and Land Claims

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The White Paper of 1969 committed the federal government to respond to historic grievances based on a failure to fulfil treaty promises to land and on illegal losses of reserve land or band funds over the years. Dr. Lloyd Barber was appointed as the Indian Claims Commissioner and he quickly discovered that there were numerous outstanding claims involving a massive amount of land and money. The federal government responded by creating a branch within the Department of Indian Affairs to fund claimant groups in their attempts to document the historical basis of claims. Federal officials were appointed to negotiate resolution of the grievances.

Assertion of rights based on Aboriginal title to land continued to be rejected by both federal and provincial governments until the Supreme Court of Canada delivered its judgment in Calder v. Attorney General of British Columbia, [1973] S.C.R. 313. This landmark case was brought by the Nishga of northern British Columbia, who argued that they had possessed Aboriginal title to their traditional territory since time immemorial and had never surrendered or lost their rights to the land. Six of the seven judges who examined these issues agreed that Aboriginal title was a valid legal concept recognized by Canadian common law. They were divided equally, however, as to whether colonial legislation in British Columbia had effectively extinguished the Aboriginal title of the Nishga. Mr. Justice Judson, on behalf of two others, concluded that this pre-Confederation legislation dealing with Crown land generally was sufficiently inconsistent with the continued existence of Aboriginal title so as to extinguish it. Mr. Justice Hall’s decision, concurred with by two others, disagreed, as he declared that Aboriginal title could be terminated only by legislation that explicitly stated this effect in clear and plain language. The seventh judge rejected the Nishga’s appeal on procedural grounds.

Although the Nishga lost, the fact that six Supreme Court of Canada judges concluded that Aboriginal title still existed as part of the common law forced the federal government to develop a new position. Indian Affairs minister Jean Chretien announced a new federal policy in August of 1973, expressing a willingness to negotiate the settlement of Aboriginal title land claims, which it called "comprehensive claims," in northern Quebec, both territories and British Columbia. The existing policy of resolving treaty and reserve land claims was sustained under the label "specific claims." Southern Quebec and Atlantic Canada were placed in a third and undefined category, and were described incorrectly as entirely non-treaty areas.

Further litigation over the balance of the decade helped clarify the continued existence of Aboriginal title for the Dene in the Mackenzie Valley despite Treaties 8 and 11,7 for the Cree in northern Quebec,8 and for the Inuit in the eastern Arctic.9 Litigation in Manitoba, sparked by hydro-electric development, helped to encourage the parties to ultimately negotiate the Northern Flood Agreement (NFA).

Major claims began to be filed with the federal government almost immediately after it proclaimed its policy shift in 1973. Negotiations were commenced shortly thereafter, but only the impetus of massive resource development projects resulted in the conclusion and implementation of two major land claims settlements, through the James Bay and Northern Quebec Agreement of 1975 (and a small adhesion for the Naskapi through the Northeastern Quebec Agreement of 1978) and the Inuvialuit Agreement of 1984 in the Beaufort Sea region. Negotiations elsewhere have dragged on for years while many other Aboriginal groups wait in line for their claims even to be addressed, as the federal government restricted the number of claims under negotiation to six at any one time until September 1990. Eighteen claims are pending in British Columbia alone.

The Aboriginal title claims process has been limited to First Nations and the Inuit, except in the Yukon and the Northwest Territories, where the Metis and non-status Indians are included. As a result, claims of Metis and unofficial Indian communities are not accepted, leaving the Metis in Manitoba without a negotiation process by which to pursue their land claims. In addition, the federal government is of the view that the land surrender treaties effectively extinguished Aboriginal title in Ontario and the Prairies, with the result that no comprehensive claims can be submitted by First Nations in these four provinces. The federal government also continues to refuse to address Aboriginal title claims in southern Quebec and in Atlantic Canada (except for Labrador).TOP

 

Constitutional Reform

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Another dramatic initiative that affected Aboriginal people was Prime Minister Pierre Trudeau’s desire to patriate the Canadian Constitution, along with a "made-in-Canada" amending formula and an entrenched bill of rights. This venture came as response to the pledge of constitutional renewal made during the federal government’s campaign against sovereignty-association in the Quebec referendum of 1980. Aboriginal groups were very concerned about how this could violate the treaty commitments reached with the Crown and feared that Canadian control over the Constitution could result in further damage to their rights, or a repeal of federal responsibility altogether. On the other hand, Aboriginal organizations saw the negotiation of new portions of the Constitution as an excellent opportunity to protect their unique Aboriginal and treaty rights from attack by antagonistic federal or provincial governments in the future. At the same time, the possibility was created to achieve proper respect for these rights in the supreme law of the land, so as to overturn years of court decisions that had upheld legislative interference with hunting and fishing rights.

After a coordinated initiative involving all Indian, Inuit and Metis national leaders, the federal cabinet and the Joint Parliamentary Committee agreed in January of 1981 to include a clause in the draft constitution that would recognize Aboriginal and treaty rights. This provision was dropped in November of that year at the insistence of several premiers, as part of the price of obtaining their support for a revised constitutional package. Although the affirmation of these historic rights was deleted, Trudeau replaced it with a clause requiring a constitutional conference to be convened by the prime minister, involving premiers, territorial leaders and representatives of the Indian, Inuit and Metis peoples. As a result of intense lobbying from Aboriginal people and thousands of non-Aboriginal Canadians, the first ministers back-pedalled somewhat and restored the Aboriginal and treaty rights provision, albeit in a watered-down form.

The Charter of Rights and Freedoms, proclaimed on April 17, 1982, was a turning point in Canadian history in many ways. As a result of the Charter, limitations were imposed upon the power of Parliament and the provinces to pass laws within their jurisdictions. Our courts were invested for the first time with the authority to scrutinize legislation passed and otherwise valid to determine if the overriding rights of Canadians described within the Constitution Act, 1982 had been violated. The judiciary now had the obligation to strike down any law breaching a fundamental freedom that could not be justified as "a reasonable limit prescribed by law in a free and democratic society" by virtue of section 1 of the Charter.

The position of Aboriginal people, both within Canadian law and Canadian society, was changed dramatically by the new Constitution. When the negotiation process was complete, the supreme law of the land included three provisions dealing with Aboriginal peoples. The most important of the three is section 35, which recognized and affirmed the "existing aboriginal and treaty rights of the aboriginal peoples of Canada." Under this provision, Aboriginal peoples are defined as including "the Indian, Inuit and Metis peoples." (section 35(2)) Section 35 is outside the Charter, and therefore is not subject to limitations as allowed by section 1 of the Charter. The second provision, included in the Charter, shields the unique rights and freedoms of the Aboriginal peoples from challenge under any of the other provisions of the Charter of Rights and Freedoms. Section 25 states:

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

The final provision (section 37) promised a First Ministers’ Conference on Aboriginal constitutional matters before April 17, 1983. Prime Minister Trudeau called that conference into session in early 1983 and consensus was reached on some matters. It was agreed that both sections 25 and 35 of the Constitution Act, 1982 would be amended to include the rights contained within past and future land claims settlements as treaty rights. Secondly, it was decided to amend section 35 to guarantee sexual equality among Aboriginal men and women in the enjoyment of these unique rights. It was accepted further that none of the provisions in the Constitution Acts of 1867 and 1982 that expressly referred to Aboriginal peoples should be amended at any time without first consulting with Aboriginal peoples through a First Ministers’ Conference. Since the first ministers and Aboriginal leaders could only articulate a long list of issues of mutual concern in a protocol, rather than provide a definition or identification of the scope of Aboriginal and treaty rights, they decided to meet on at least three more occasions.

Amendments to the Constitution were passed by all provincial legislatures, except Quebec’s, and by the Parliament of Canada, with the effect that they were proclaimed in force in June 1984. Sections 25 and 35 were revised to extend similar treatment as treaties to both previous and future land claims agreements. A new provision was added to guarantee Aboriginal and treaty rights equally to male and female Aboriginal persons. Another section (section 35.1) requires the prime minister to convene a First Ministers’ Conference if amendments to sections 25, 35, 35.1 or 91(24) are ever under consideration in the future. The section 37 meeting process also was extended until April 17, 1987.

First Ministers’ Conferences were held before the television cameras in 1984, 1985 and, finally, in 1987, resulting in a striking degree of national attention being devoted to Aboriginal issues. The focal point for discussion rapidly became the issue of the right of Aboriginal peoples to govern themselves, and the constitutional recognition of that right. The debate centred on whether the extension of this right should be subject to the complete control of both federal and provincial governments, or if the right simply should be stated within the Constitution and the elaboration of its implications be left to future negotiations.

While some limited flexibility in positions was evident and several parties attempted to fashion a compromise, the chasm between the two dominant views was too broad to be bridged. Fundamentally, this reflected two deeply felt and divergent views of the Aboriginal-Crown relationship. Aboriginal people asserted that they have the inherent right to govern their own affairs and have never surrendered this right. Thus, the issue from their perspective relates solely to regaining acceptance by general society of the ability and authority of Aboriginal people to determine their own future. Implementing this acceptance then gives rise to discussions regarding the interrelationship of the federal, provincial and Aboriginal governments.

The prime minister and most premiers took the position that Aboriginal people did not have any existing right to self-determination. They believed that Aboriginal people could obtain such a right only through the extension of delegated powers under Canadian legislation or by way of constitutional change.

The excitement and hopes of Aboriginal people during the First Ministers’ Conferences have long since subsided. Since there was no agreement on an amendment on Aboriginal self-government, or regarding ongoing mechanisms for debating and adjudicating Aboriginal issues, the previous situation has largely returned, but with significant public support for Aboriginal positions.

The federal government relies exclusively on direct negotiations to resolve claims. Negotiation is the only alternative to expensive litigation, which few Aboriginal groups can afford or desire, given its adversarial nature and their lack of faith in the legal system. While both a Special Parliamentary Committee on Indian Self-Government in 1983 and the Canadian Bar Association in 1988 recommended the establishment of new institutions to deal with the settlement of claims, improvements have yet to be implemented. The settlement process is protracted, legalistic and distanced from the claimants. TOP

 

The International Origins of Aboriginal and Treaty RightsTOP

Introduction

One of the primary issues with which Canadian society has to come to grips is the historical legacy of its acquisition of Aboriginal lands. We are not talking here about the questionability of the treaties, for that is quite another matter. The issue involves how Canadian and American legal systems have addressed the nature and form of the Aboriginal legal interest in the land now within Canada and the United States, and of the legal techniques used to assert dominion over lands which enjoyed some degree of legal protection in international law. The failure of the legal system to deal adequately with the issue is reflected in the following judicial statement:

“[T]he exclusive right of the United States to extinguish” Indian title has never been doubted. And whether it be done by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise, its justness is not open to inquiry in the courts.10

The attitude which this reflects has prevailed for a considerable period of time and has led to a feeling of considerable distrust on the part of the Aboriginal community. The community is generally reluctant to call upon the courts to help it resolve some very serious legal issues with the Canadian government, but particularly where Aboriginal lands are concerned.

Despite the desire of various governments to confine the question of Aboriginal issues to a domestic context, certain fundamental Aboriginal rights have been recognized in international law and practice since the 15th century. TOP

 

The Basic Features of International Law

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International law, unlike municipal or domestic law, does not have a legislative body to promulgate binding principles. International law is limited further by the fact that there is no one tribunal with jurisdiction to resolve all international disputes. The role of the primary existing tribunal, the International Court of Justice, is restricted to resolving only those disputes jointly referred to it by recognized nation states.

The existence and nature of an international rule of law is not always easy to determine in the absence of a legislative body. The accepted sources of international law are set out in the Statute of the International Court of Justice. In ascertaining the law in a given dispute, the court first looks to see if there is an applicable treaty (an international convention) between the parties. Where none exists, the court then looks to international custom, as evidenced by state practice. In order for a practice to be a binding custom, it must be both uniform and obligatory, rather than a matter of convenience. If the court is unable to apply an international treaty or custom, Article 38.1 provides for subsidiary means of determining "rules of law." These include reference to judicial decisions and the work of scholars.

The decisions of international courts and tribunals are not binding except between the parties in respect of the particular case. The decisions of municipal courts (i.e., courts of each nation) also are not binding in international disputes. Rules of law derived from treaties take precedence over rules of law derived from custom, and general principles of domestic law are subordinate to both. Canadian courts can and do apply rules of international law, provided they do not conflict with statutes or some fundamental constitutional principle.

In R. v. Sioui, [1990] 1 S.C.R 1025, the Supreme Court of Canada clearly reiterated prior statements that international law need not be referred to in order to resolve matters arising from Indian treaties. The existence and validity of an Indian treaty are not dependent upon its meeting the test of an international treaty cognizable at international law. However, that does not mean that international law is irrelevant where Aboriginal rights are concerned. On the contrary, we believe that international law has evolved over the years a number of principles which are useful when considering the contemporary Aboriginal situation in Canada and in concluding what is the most appropriate course of action to take in the future. TOP

 

The Roots of Aboriginal Rights in International Law

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Aboriginal rights became an issue for Europeans in the 16th century with the Age of Discovery. Various European nations engaged in competition with each other to expand their influence throughout the world and to control world trade, justifying their drive to do so as part of their obligation to spread Christianity. The severity of the competition among nations naturally led to strained relations and sometimes to outright war among the various competitors, with the result that international "understandings" were developed in order to control the outbreak of hostilities and to enforce alliances. These understandings eventually evolved into a body of law in the form of principles of international or extraterritorial conduct deemed acceptable to "civilized" nations. The individuals most responsible for the development of this body of principles addressed their minds to the way that the "discoverers" were dealing with the indigenous people already in occupation of the territories which they "discovered."

The "fathers" of contemporary international law were, thus, the "fathers" of Aboriginal rights theory. Aboriginal law originated, and is grasped best, as a branch of international law, with the basic concepts of modern doctrine being hammered out by Francisco de Vitoria, Bartolome de las Casas and other Spanish theological jurists of the 16th and 17th centuries.

In a 16th century treatise, De Indis et de Jure Belli Reflectiones, Vitoria outlined the basic concepts of Aboriginal rights. At the University of Salamanca, Vitoria lectured extensively on the subject of the Aboriginal people of North America. He dealt with the Aboriginal population being "discovered" by the Spanish adventurers, and the respective rights and duties of each. Reports of military abuses, enslavement and massacres of these newly discovered people had reached Spain. There were heated debates about the matter, resulting in both the Crown of Spain and the Papacy issuing a series of cedulas and "papal bulls" decrying such abuses and attempting to ensure that certain basic rights were recognized. These measures proved ineffective, however, because the central authorities were unable to control the outposts in the New World, and were unwilling to impose trade embargoes and forego the riches of exploitation.

Although Vitoria’s influence on international law is derived primarily from his impact on later scholars, he is recognized as one of the most important thinkers of his time, and his work had a measurable influence on the policies and attitudes of those in power. In his concept of the law of nations, Vitoria asserted that all people had certain inherent rights, including possession of a spirit or soul and the capacity for salvation. According to Vitoria, Indians could not be deprived of their possessions unless the Spaniards could advance a just cause for doing so. Simply stating that Indians were not Christians did not suffice, nor did stating that Indians were of unsound mind.

Vitoria also dealt with the title to land being advanced by the Spaniards. He unequivocally rejected the concept of basing title on the status of the Spanish emperor as the "Lord of the World." He also stated that title could not be based merely on the Indians’ rejection of the supremacy of the Pope. With reference to title based on claims that Spain was the first European nation to "discover" the New World, Vitoria dismissed that proposition outright, saying the land "discovered" already had an owner from a public and private point of view: the Indians. The most that discovery could do was to grant priority to the discovering state vis-a-vis other potential colonizers in pursuing trade with or land purchases from the indigenous nation. Likewise, papal grants could not substantiate title, but merely allocate priority rights among Catholic nations.

In Reflectiones, Vitoria also outlined the nature of what constituted legitimate contact with the Indian nations. If the Indians were hostile after the Spaniards had demonstrated their "friendly" intentions, only then were the Spaniards legitimately allowed to use force, and even then it had to be measured to inflict the least amount of damage. Vitoria concluded this work on a practical note, stating that commerce with the Indians was permitted, and that the Spanish Crown was bound by law and expediency to maintain its administration of the lands in question, as there were already many Aboriginal converts. The Spanish Crown accepted the validity of the principles articulated by Vitoria, although it perverted their intent through devising the requirimientos, in which the king’s offer of friendship was read aloud in Spanish in a deserted locale. The failure of the Indians to accept the offer authorized the military to attack.

One century later, Hugo Grotius, a Dutch scholar much influenced by Vitoria, published a treatise on Aboriginal rights entitled De Jure Praedae Commentarius. Grotius adopted many of Vitoria’s concepts and beliefs. Expanding on Vitoria’s belief that the Spaniards were entitled by the law of nations to travel and reside among the Indians, Grotius stated that the Spaniards would have just grounds for waging war with the Indians if they were prevented by the latter from carrying on the practice of commerce or conversion.

Grotius, however, agreed with Vitoria’s belief that Indians could not be deprived of their property or possessions unless there was just cause, and that mere paganism did not constitute a just cause. Grotius also agreed that the Indians should be converted only through peaceful means and that any Indians enslaved under the pretext of conversion should be released. Grotius further reiterated Vitoria’s belief that the emperor did not have the right to convert the new provinces to his own use and that any pretext used in favour of such a practice was unjust. The principles enunciated a century earlier in regard to Spain’s dealings in the New World were accepted by Grotius, and he seems simply to have applied them specifically to matters of Dutch interest.

Samuel Pufendorf, a contemporary of Grotius, criticized both Grotius and Vitoria in his renowned work, De Jure Naturae et Gentium. The Indians, Pufendorf argued, were under no obligation to receive visiting foreigners, as was the case with other nations. As the "property holders," the Indians had the right to consider and determine the purpose and length of the visit, as well as the number of visitors. Even when the Indians granted the visitors certain trade and commercial privileges, they also had the right to revoke such privileges. It was untenable to suggest, Pufendorf argued, that the Indians were forced to welcome such visitors, especially when to do so would be at their own peril.

The work of these three scholars, the founding fathers of international law, is significant because all three recognized the importance and existence of certain fundamental Aboriginal rights in international law. Their views were largely adopted, albeit with several important modifications, by Emmerich Vattel, writing in the mid-18th century. It is his description of Aboriginal rights to land and sovereignty that became influential among American jurists in the following century.TOP

 

The Use of Doctrines of International Law

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Since the beginning of the Age of Discovery, European states have engaged relentlessly in the process of divesting indigenous peoples of their lands, and have sought to justify and legitimate this practice through the use of the doctrines of discovery, occupation, adverse possession, conquest and cession. On the whole, domestic courts have either ignored or generally misapplied and misinterpreted these doctrines in their discussions of "Aboriginal title," thereby upholding the status quo of Aboriginal dispossession.

The starting point in determining what rights Aboriginal people had at international law when they first were in contact with Europeans requires an examination of the legal provisions applicable to those nations which asserted authority over North America after contact. We will examine in turn each of the rationales for European claims to sovereignty and underlying title to the discovered territories.

The Doctrine of Discovery

The doctrine of discovery has been—and still is—rigorously advanced by various authors, jurists, legal scholars, nation states and domestic courts as the foundation upon which English, Canadian or American sovereignty in North America is based. The basic premise is that the first state to "discover" an uninhabited region with no other claims to it automatically acquires territorial sovereignty. Originally, the doctrine was limited to terra nullius—literally, a barren and deserted area—as reflected by the noted English scholar of the common law, Blackstone, writing in his Commentaries. The concept of terra nullius was expanded later, without justification, to include any area devoid of "civilized" society. In order to reflect colonial desires, the New World was said by some courts to fall within this expanded definition.

The traditional doctrine of discovery has never been recognized as vesting a valid claim or title to a "discovered" territory. Since Vitoria’s vehement rejection of the doctrine in the 16th century, such a claim has been seen only as establishing an initial and incomplete title to the territory in question. This traditional interpretation has been ratified and affirmed in decisions from international courts in this century.11 While there is some debate among academics about this claim’s validity,12 the dominant view clearly is in favour of the traditional elaboration of this doctrine.13

Although the doctrine of discovery has been advanced occasionally by European powers since the "discovery" of the New World, such a claim was based more upon expediency than international law. The validity of the claim is dependent upon the status of the territory as terra nullius—an uninhabited land. Because Indians already occupied the land at the arrival of the Europeans, Vitoria unequivocally rejected such a title when it was asserted in the New World. Although there were many attempts to found claims based on discovery, the doctrine, by itself, was not considered sufficient to establish a valid claim, and does not appear to have been accepted officially by the competing states themselves, unless the discoverer was able to demonstrate an actual and effective governmental presence.

In Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823), however, the United States Supreme Court applied the doctrine of discovery in order to justify American sovereignty over the land included in what is now the United States of America. The court held that:

• The principle of discovery was acknowledged by all Europeans because it was in their interests to do so.

• The nation making the "discovery" had "the sole right of acquiring the soil and establishing settlements on it."

• The rule regulated the relations among the competing interests of European powers.

• The original inhabitants had the right to retain possession of their land, but were without any powers of alienation other than to the "discoverers" who had obtained exclusive title by virtue of making the "discovery."

When one considers both the international legal reality of the time and state practice, this decision appears to be more an effort to justify the taking of Indian territory that had already occurred than a serious analysis and application of the principles demanded by international law. Quite simply, the concept that Aboriginal inhabitants could only alienate their interest in the land to the "discoverer" was a legal fiction, because that concept did not originally exist in international law. In the Island of Palmas case (1928), 2 R.I.A.A. 829, the doctrine of discovery, as a means to justify the taking of Aboriginal lands, was considered and rejected definitively in just such a situation by the Permanent Court of Arbitration.

The Doctrine of Occupation

It has been argued by some that if discovery was seen to vest only an imperfect title, then discovery plus occupation completed the claim. There was, however, a traditional requirement that the land so discovered and occupied had to be a terra nullius. At one time, an area devoid of "civilized" society was alleged by some scholars to fall within the scope of such a requirement.14 The more accurate historical interpretation, which is reflected by the modern jurisprudence in international law, precludes the requirement’s application to any region with an indigenous population that is organized socially and politically.

According to the Island of Palmas case, a claim based on discovery was incomplete until accompanied by "the effective occupation of the region claimed to be discovered." The term "effective occupation" incorporates the notion of "uninterrupted and permanent possession." Based on such a rule and interpretation, it would appear that the only ones capable of successfully advancing a claim based on discovery and occupation may be the Aboriginal peoples themselves, because they are the ones who could argue best that they first discovered and occupied the vacant territory many thousands of years ago.

There was much debate about the definition of terra nullius for some time. Although the term was commonly accepted as meaning "uninhabited," some decisions have held that certain tribal lands could be said to fall within the scope of "uninhabited" if the peoples of the area exhibited an unwillingness to exploit the land in a "civilized" fashion. Such decisions, like many of the European policies of dealing with indigenous peoples, were largely the result of expediency and ethnocentrism. The present state of international law, as expressed by the International Court of Justice in the Western Sahara Case, precludes a region from being termed "uninhabited" if nomadic or resident tribes with a degree of social and political organization are present in the area. The issue then becomes, in individual cases, whether a specific indigenous group meets the test by exhibiting a sufficient degree of internal organization to be recognized as a distinct society, so as to effectively occupy the land and administer it as its own.15

It appears from the Canadian case law that probably every Aboriginal group would meet this test. The standard is not similarity to European civilization, and no particular level of "sophistication" is required.16 International law merely requires that the society was organized sufficiently to meet the needs of its members and was recognizable by others as a legal entity that inhabited the territory with a settled system of government. This test has been articulated by one of the leading scholars of the 20th century on this subject:

[I]n order that an area shall not be territorium nullius it would appear ... to be necessary and sufficient that it be inhabited by a political society, that is, by a considerable number of persons who are permanently united by habitual obedience to a certain and common superior, or whose conduct in regard to their mutual relations habitually conforms to recognised standards.17

It should be noted that the colonizing nations themselves applied this test in the 18th and 19th centuries, with the Indian treaties demonstrating its practical application. The Western Sahara Case’s adoption of it in 1975 indicates that it reflects current international law. This test, however, should not be confused with international law requirements established for recognition as a nation state, which include additional criteria.

The Doctrine of Adverse Possession

The doctrine of adverse possession has frequently been linked to the above two doctrines to consolidate a valid claim to territory. Adverse possession basically posits that you can acquire title to part of another state’s land if you openly occupy it for an extended period of time and the original owner acquiesces to your presence. In order for such a claim to be valid, there must be a de facto exercise of sovereignty which is peaceful and unchallenged. This doctrine is similar to one that exists within the Canadian domestic law by virtue of provincial and territorial legislation (the relevant Limitations Act, which establishes a 10- or 20-year rule among private parties and 60 years versus the Crown) or through reception of English law (regarding federal Crown land).

It would take little effort to discover in Canadian or Manitoban history sufficient examples of Aboriginal resistance to European occupation of the land to refute the application of this doctrine. Significant European occupation of lands in Manitoba did not occur until the Selkirk Settlement of 1811. That settlement came about as a direct result of Aboriginal consent being negotiated with Indian Chief Peguis by Lord Selkirk prior to the arrival and occupation of the land by the European settlers. The Hudson’s Bay Company, which constituted the only significant European presence prior to that era, acknowledged in its practices the Indian sovereignty in the territory, and deliberately did not interfere with Indian control over their territory. In fact, various instructions sent to the trading post managers in North America by the senior officials of the company always emphasized the importance of not interfering in the internal affairs of the Indians, and in ensuring that wherever trading posts were established, the "Indian title" was purchased. When the company transferred its interest in the territory to Canada, it specifically required that the new Dominion negotiate land surrenders with the Indians, and in 1872 the Canadian government began to do so. Those earlier negotiations between the company and the Indians, as well as the later treaties between the Dominion and the First Nations, enabled the land to be settled by Europeans with Indian consent, as the latter agreed to share their territory.

To the extent that they reflect only a surrender of exclusive Indian title to much of the land, the treaties also amount to a confirmation of the Indian right to retain all other aspects of their Aboriginal title (i.e., their "other" Aboriginal rights), since only the land rights were surrendered.

What is clear, however, is that Canadian sovereignty in western Canada is dependent to a large degree upon the validity of the treaties in those areas covered by them.

The Doctrine of Conquest

With respect to its traditional interpretation, the doctrine of conquest allowed using force or waging war only if a nation’s security or rights were threatened. Under traditional international law, a country was no more justified in exploiting another through force than was a private individual. Conquest gave the victorious nation the full right to colonize the vanquished nation and change its legal regime. These rights usually were described in the peace treaty that ended the war. The doctrine of conquest only operated, however, if the conquered territory actually was annexed and possessed by the conqueror. In terms of the indigenous lands in North America, these criteria normally were not met as no state of war was declared, although hostilities were not infrequent.18

The present interpretation of the doctrine of conquest was outlined by the Permanent Court of International Justice in the Status of Eastern Greenland Case (1933), 3 W.C.R. 148 at 171. According to this decision:

[The doctrine of conquest] only operates as a cause of lack of sovereignty when there is a war between two states and by reason of the defeat of one of them sovereignty over territory passes from the loser to the victorious state.

The doctrine of conquest frequently has been confused with the doctrine of discovery. Both are also the cause of further confusion, as they have international and domestic law purposes. At international law, conquest can cause the vanquished to lose sovereignty when the conqueror chooses to annex part or all of the territory of the loser. As has been indicated already, discovery per se can justify only the acquisition of sovereignty over uninhabited territories, and even then mere discovery without actual occupation is insufficient.

These two doctrines are also used for an entirely different purpose: determining what law comes to be applied within the newly acquired territory as opposed to the international law standards governing the legitimacy of the process of acquisition itself. The common law distinguishes among settled, ceded and conquered colonies for the purposes of defining precisely when and on what terms the common law becomes the basic foundational law of the colony. This function is embraced within the English doctrine of reception of laws. It is quite possible, therefore, for a territory to be treated as being acquired at international law by conquest or cession (treaty), and then for the common law to be applied on the basis that the land is treated as a settled colony.

Canada, in fact, is treated largely as a settled colony under the reception of laws doctrine, with the common law being "received" by each colony as it stood on the date the first local colonial statute was passed. The sole example of using the conquest theory for domestic purposes relates to the colony of New France, in which King George III imposed the common law through the Royal Proclamation of 1763. French civil law was restored in non-criminal matters through the Quebec Act of 1774.

It is clear from our history that conquest was rarely, if ever, relevant in the acquisition of sovereignty over Aboriginal peoples and title to their lands. While this was argued forcefully by the Province of Nova Scotia and a variety of other governments in the Simon case, the Supreme Court of Canada decisively rejected its application in relation to the Micmac treaties of 1725 and 1752. The court further stated in R. v. Simon, [1985] 2 S.C.R. 387 that the conquest doctrine could apply in Canada only if a declaration of war had been proclaimed previously by the Crown, and there was no evidence of this ever occurring in Aboriginal-Crown relations.

The Doctrine of Cession

From the discussion thus far, it would appear that the consent of indigenous peoples is a necessary precondition to the legitimate acquisition of their territory, except where war has been officially declared and the conquest doctrine applies. The signing of valid treaties would fulfil the requirement for consent but, as mentioned elsewhere, the exact legal nature and effect of the Indian treaties are plagued by uncertainty. In some instances, Aboriginal groups voluntarily surrendered their Aboriginal title, but in other instances fraud, undue influence and misunderstanding would seem to invalidate the arrangement.

The history of Indian treaties is filled with injustice and dishonesty, if not in the negotiations themselves, then certainly in the implementation and interpretation of the treaties. To begin with, the Indians’ understanding of the treaties rarely coincided with that of the Europeans. Indian people generally believed that they were only signing an arrangement to share the land with the newcomers, not, as some government officials later asserted, that they were agreeing to an abject surrender of their land and sovereignty. To the Indians, the treaties were intended to ensure that all people had access to the traditional territory of the Indian nations. This meant to them that they would continue to use their land as before and that mutually exclusive uses would not occur on a large scale. Clearly, they could not know or realize that such treaties would be relied upon later to exclude them from areas they had inhabited traditionally or to restrict them to the small parcels set aside as their reserves. If they had been told that that was to be the case, there is much doubt that they ever would have agreed. In fact, there is considerable evidence that many of the assurances given during the treaty negotiations were deliberately ignored by governments. The Indian nations of Manitoba were told that the various treaties confirmed their continued rights to use the land as they always had and that the Crown would guarantee this for as long as the lands and waters existed. Including guarantees of their hunting and fishing rights demonstrated that their traditional economies were to be protected. This required their ability to use their traditional territory.

The precise legal nature and effect of Indian treaties in North America are uncertain under international law, but the validity of many of the treaties could be easily questioned and rendered uncertain at common law, in light of both the questionable tactics used by the Crown’s representatives in inducing Aboriginal groups to sign and the failure of the Crown to honour its obligations.TOP

 

The Application of International Law to Aboriginal Peoples in CanadaTOP

When Europeans first came here, their main objective was commerce. When France and England engaged in their fierce competition for the exploitation of Canada for its furs, Aboriginal people were enlisted in the service of one side or the other, as they played a vital role as military allies and essential trading partners.

Early European settlements in Canada were insignificant in size until the late 1700s and almost nonexistent in Manitoba until well into the 19th century. Their precarious and vulnerable position in a harsh, unknown country necessitated the cultivation of friendly relations with the Aboriginal people. As the fur trade became larger and colonists undertook farming, these settlements began to expand in size and in numbers. Relations between the two groups began to change. Exploitation of the natural resources of the country for economic gain eventually evolved into a desire to gain total dominion.

The transformation in the relationship between settlers and Aboriginal people accelerated first with the defeat of France by England and then through the arrival in eastern Canada of thousands of United Empire Loyalists fleeing the United States after the American Revolution. Britain needed large tracts of land to accommodate the new arrivals and also needed Indian allies to oppose American ambitions for expansion. This necessitated a policy of continuing to cultivate friendly relations with Indian nations and the focussing of this policy on western portions of what later became central Ontario, while acquiring land by treaty in southeastern Ontario for settlers. The Aboriginal peoples in northern and further western regions (from Lake Huron to the Pacific Ocean) became the new suppliers of furs and trading partners.

This relationship in the West, and particularly in Manitoba, began to change in the 19th century. First came Lord Selkirk’s desire to establish a new colony for British immigrants in 1811. This objective was tolerated by the Indian nations because it did not disrupt the fur trade significantly and did not involve much of their territory. The desire for a lumber industry later sparked Imperial interest in acquiring title to the remainder of the Great Lakes area in 1850, and the Hudson’s Bay Company purchased portions of Vancouver Island during the next few years. After its creation in 1867, the new government of Canada sought to assert its dominion over a vast territory of what is now western Ontario and the Prairies. It turned to the treaty process to obtain ready access to Indian lands. For the Metis, the government, through the Manitoba Act, 1870, attempted to extinguish title in exchange for promises of individual land grants.

The Indian leaders of Manitoba were not told that the Crown intended to restrict them to reserves while the balance of their traditional territory was to be allocated to benefit the newcomers. Instead, Alexander Morris, the Crown representative, offered reassurances that life would remain largely unchanged. Yet, within a few years, by the mid-1870s, the Crown had established what it needed—a written record of a passive conveyance of land that would reflect the "truth" to the public, while the oral version of the negotiations would be remembered only by the Indian nations.

At the same time, the federal and Manitoba governments were passing general land legislation that took no cognizance of the presence of Aboriginal peoples. The new federal government of Sir John A. Macdonald followed a policy of largely ignoring the special status of Aboriginal peoples after the treaties were signed. Assimilation into the dominant society was the agenda of the day, with little recognition given to the assurances made during treaty negotiations. Provincial legislation and regulations were used extensively to facilitate the sale of land rights belonging to Metis children, who were the sole recipients of those rights under section 31 of the Manitoba Act, 1870.

Proper respect for the principles of international law by Canadian governments would have protected Aboriginal people from the treatment they received during the treaty-making era and subsequently. The colonization of the "New World" essentially involved the assertion of territorial and jurisdictional sovereignty by the European governments. In order for each one to legitimate its claims in the eyes of its European competitors, it was necessary for the colonizer to demonstrate a valid legal claim or title to the territory in question. In order to do so, however, reliance had to be placed on international law, yet that law contained principles concerning Aboriginal people which made it clear that the Aboriginal interest in the land could not be ignored. The manner in which legal title was asserted as against the Aboriginal people in subsequent domestic court decisions is clouded by the obvious lack of attention to those principles.

Thus, the traditional international law doctrines of discovery, occupation, adverse possession, conquest and cession bore little resemblance to the way in which they came to be applied in American, English and Canadian case law. The most critical redefinition of international law by the judiciary occurred in its use of the doctrine of discovery to justify European claims.

The Fiction of Discovery in Canadian and American Law

As indicated earlier, the United States Supreme Court viewed title to all the land in the New World as being rooted in the doctrine of discovery. This doctrine, according to Chief Justice Marshall, acted as an ordering principle for the European colonization of North America.19 He asserted that it essentially held that the "discovering" nation acquired the sole right before all other European nations to extinguish Indian title to the soil and to establish settlements on it. The doctrine of discovery, he felt, also served to define the new relationship between the colonists and the indigenous populations. The Aboriginal people, Marshall reasoned, still had the right to occupy the soil, but their general powers of alienation had become restricted as the "discovering" nation had gained the "underlying" title to the land. In addition, European territorial sovereignty expanded to accommodate this new reality. The Indians became enveloped within this new European territory, and subject to European sovereignty. It is as though a blanket of European title was cast over the land, covering all those upon whom it fell. The Europeans had acquired the right to extinguish Indian title however they pleased, and this principle was said to be unquestionable. There was, however, literally no basis in international law for the assertion of such a principle.

Marshall’s use of the discovery doctrine was clearly inconsistent with the traditional doctrines of territorial acquisition under international law. Nevertheless, it was affirmed by various English decisions, and tacitly accepted by leading Canadian cases such as St. Catherine’s Milling & Lumber Co. v. R. (1888), 14 A.C. 46 (P.C.) and Calder. Like a thread, it runs through Canadian jurisprudence and is now the accepted justification for the expropriation of the underlying title to Aboriginal lands in both the United States and Canada.

Marshall’s legal fiction, enunciated through several landmark decisions—Johnson v. M’Intosh; Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); and Worcester v. Georgia

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